McGehee v. McCarley

• Decision Date: 10 January 1899
• Docket Number: 763.
• Citation: 91 F. 462
• Parties: McGEHEE et al. v. McCARLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

91 F. 462

McGEHEE et al. v. McCARLEY.

No. 763.

United States Court of Appeals, Fifth Circuit.

January 10, 1899

Zuma Allred, a child seven years of age, having been run over and killed at Belle Mina. Ala., by a train of the Memphis &amp Charleston Railroad Company, Andrew J. McCarley was appointed administrator of her estate by the probate court of Blount county, Ala. As administrator, he then brought suit in the circuit court of Morgan county, Ala., against the receivers of the Memphis & Charleston Railroad Company, for $10,000 damages for the alleged tortious killing of the decedent. The suit was removed by the defendant receivers to the United States circuit court for the Northern district of Alabama. As stated by the counsel for the defendant in error in their brief, the complaint presents three theories as to the cause of the child's death: ' (1) That the depot agent for about half an hour before the arrival of train tried to induce the child's mother to have carnal intercourse with him, which she refused to do; and he finally caught hold of her and caused her to scream, which awakened and frightened the child, and caused her to run out on the tracks. (2) That there was a negligent failure to provide lights at the depot whereby the child or her mother could have seen the tracks. (3) That the engineer while coming into the station negligently failed to keep a proper lookout, which would have discovered the child on the track in time for him to have stopped his train before reaching her. ' The defendants below pleaded the general issue, as also, specially contributory negligence on the part of both the child and her mother, and that McCarley's appointment as the child's administrator was invalid, because the child left no asset except the right of action for her death, which asset, it was alleged, did not give the probate court jurisdiction to appoint an administrator. The substance of the testimony given on the trial by Mrs. Allred, the mother of the child, is as follows: On December 1, 1893, she started from Oneonta, Ala., for Texas, with her five children, the oldest of whom was nine years old, and the youngest an infant in arms. They went by way of Birmingham, Ala., and thence to Decatur, Ala., over the Louisville & Nashville Railroad. At Decatur they changed cars to the Memphis & Charleston Railroad. They had through tickets to Texas. Instead of taking the west-bound train at Decatur, they took the east-bound train at about 4 p.m. A railroad agent at Decatur told Mrs. Allred to take the latter train. The conductor of the east-bound train, on discovering that she was on the wrong train, told her to stop at Belle Mina, a station on the Memphis & Charleston Railroad six miles from Decatur, so that she could go back to Decatur. She got off at Belle Mina with her children about sundown. The depot agent at Belle Mina told her to go into the depot and wait. She did so. There was a platform around the depot. There was a lantern in the waiting room, but no light on the platform or tracks. It was a dark night. The agent said that the west-bound train would come about midnight. He stayed in his office for about an hour after Mrs. Allred arrived. He then went away, having given her a key to lock the door of the waiting room on the inside. The children went to sleep. About 30 minutes before the time when the west-bound train was due, the agent returned to the depot; and, Mrs. Allred having unlocked the door at his request, he entered the waiting room. After some conversation, he solicited her to go into an adjoining room to have sexual intercourse with him. She refused. He continued his solicitation, and finally seized her by the arm. She screamed, and the children awoke. The little girl Zuma, ran out of the waiting room, down the platform steps and on the track, close by, where she was killed by the west-bound train, which was just arriving. The depot agent testified, and denied the assault. He stated that there was a light in the waiting room, and that his impression was that a light was shining out of the bay window; that his impression was that his lantern was on the platform, and that the light allowed the track to be seen without difficulty. A witness testified that he was in bed in a room adjoining the waiting room at the time of the alleged assault, and did not hear any outcry from Mrs. Allred. The engineer and fireman of the train that killed the child testified, in substance, that everything was done to stop the train in time to save the child. There was evidence pro and con as to whether a small fund of $1.25 was made up for Mrs. Allred at Belle Mina before the accident. The baggage master at Decatur testified that he did not direct Mrs. Allred to take the east-bound train. Several witnesses testified that the depot agent at Belle Mina bore a good character.

There are 44 specifications of error in the record. They relate to and complain of the following matters: The overruling of demurrers to the complaint. The sustaining of motions to strike out pleas. The overruling of the objection to the entire transcript of proceedings in the probate court appointing McCarley as administrator. The overruling of objections to certain questions to and answers by Mrs. Allred and another witness. The refusal of the court to direct a verdict for defendants below. The refusal to charge that even if the alleged assault is proven, it was not the proximate cause of the injury. The refusal to charge that McCarley is not administrator, and not entitled to recover any damages for the death of the child. The refusal to charge that only compensatory, and not punitive, damages are recoverable. The refusal to charge that, if the jury believe the evidence, their verdict must be for the defendants below. The refusal to charge...